In Parsons v The Canadian Red Cross Society, 2013 ONSC 3053 (available here), Winkler CJ (of the Court of Appeal, here sitting down in the Superior Court of Justice) has held that a judge of the SCJ can sit as such outside Ontario. No authority, it seems, requires the SCJ to sit only in Ontario.

The decision seems to me, at least on an initial reading, largely based on pragmatism. It seems efficient to so allow and so the court does. But I have some preliminary sense that there are some larger concerns here that are not being fully thought through. The place where a court sits seems awfully fundamental to its existence and authority as a court. In addition, the brushing aside of concerns about the open court principle (see paras 48-50) seems too minimal.

Part of the decision is based on Morguard and the federal nature of Canada (see para 25), so maybe the judge could not so sit outside Canada?

Could this idea get pushed beyond the fairly narrow bounds of this case? Say a case is started in Ontario and the defendant seeks a stay in favour of Alberta because of all the factual connections to that province. Could the plaintiff, if otherwise likely to see the proceedings in Ontario get stayed, ask the court to have one of its judges hear the case in Alberta, sitting as a judge of the Ontario court? That way the plaintiff gets an Ontario judgment and the defendant gets the case heard in Alberta…

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Ernst SchnellJune 4, 2013, 12:42 pm

Maybe only loosely related, but in Her Majesty’s Advocate v. Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifa Fhima Case No.1475/99 High Court of the Justiciary at Camp Zeist, Scotland’s highest criminal court relocated temporarily to the Netherlands to hear the case against the “Lockerbie-bombers” as part of a deal between Libya and the UK to prosecute the persons responsible for this act of terrorism.
The mechanism however was not by application of the parties, but by order of the Queen (High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998). So it is not easy, but this mechanism might work in Canada (I am not an expert on Canada at all), and this might be a persuasive precedent.

Although my comments as an Austrian (hence civil law) lawyer are not directly applicable to the jurisdiction in question, it might be interesting to note the difference in similar issues under other jurisdictions.

Also under Austrian law traditionally the capability of courts to act was restricted to the courts district also within Austria. The rationale behind this was the autonomy of the courts within their district, so that an official act of one court within the district of another would not infringe such autonomy. There have however always been exceptions in cases subject to special urgency, which was later on extended to more general reasons to secure the immediacy of the taking of evidence under considerations of a) expediency of the proceedings and b) judicial economy (Sec 33 of the Austrian Court Jurisdiction Act).

Today, in particular the possibilities of taking of evidence have been extended also to venues outside Austria (see Sec 291a of the Austrian Code of Civil Procedure). According to this provision a court may sit in an evidentiary hearing abroad, if a) one party to the proceedings applies for it, b) the hearing abroad is legally admissible under public international law, c) the travel of the judge is reasonably possible, d) the taking of evidence by a requested foreign court is not sufficient in the specific case, and d) a retainer on the costs is paid.

Inside Europe, cross-border taking of evidence also directly by a foreign court has been greatly facilitated by the EC Regulation 1206/2001. But also where an international treaty or other instrument does not exist, this does not necessarily prevent the court from sitting abroad. Many countries admit such acts merely on grounds of international comity. In one of my international cases, pending in front of the Vienna Commercial Court, e.g. we will have a full evidentiary hearing in the US this fall with the judge and counsel all travelling.